Categories News & Updates USCIS

H-1B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) announced this evening that it received sufficient petitions to exhaust the FY2011 H-1B cap as of Wednesday, January 26th.? Cases properly filed and received before Wednesday the 26th will be accepted and processed to adjudication.? Cases received on Wednesday will be subjected to a computer-generated random selection process.? Cases not selected in the lottery will be rejected and filing fees returned.? No announcement has been made yet on how many petitions will be subjected to the random selection, nor how many numbers are available for those cases.


It should be noted that even if postmarked on or before Wednesday the 26th, cases not physically received by USCIS by that date will be rejected and filing fees returned.


The FY2012 H-1B cap will open on April 1, 2011.? Cases approved for FY2012 will not become effective until October 1, 2011, which is when the new fiscal year begins.? Employers wishing to employ individuals who missed the FY2011 cap will need to ensure continued U.S. work authorization through at least September 30, 2011, to keep them on payroll until a new H-1B can be obtained.


There are a number of options available to those who missed the H-1B cap.? For specific guidance, please contact Graham Adair:

Categories Department of State News & Updates

U.S. Department of State Provides Guidance L-1B Specialized Knowledge

The Department of State (DOS) issued a memorandum to U.S. consular posts in an effort to define L-1B specialized knowledge. The memorandum lays out criteria that L-1B visa applicants can expect to encounter.? Of course, policy memoranda have a tendency to take some time for full implementation, but the guidance may permeate through U.S. consular posts fairly quickly.?? ?

The memorandum essentially applies a stricter standard than what has been seen at U.S. consular posts in recent history.? While this higher threshold has been applied over the past few years at U.S. Citizenship and Immigration Services (USCIS), it will be new for U.S. consular posts.

It is noteworthy that the law being relied upon for the heightened specialized knowledge scrutiny dates back to before the enactment of the Immigration Act of 1990.? Indeed, it goes contrary to more recent policy memoranda issued by USCIS applying a more relaxed burden of proof on sponsoring employers.

?Proprietary Knowledge?

The DOS notes that knowledge of proprietary products, services, or processes is not required, but recommends that adjudicators take it into consideration when making a determination.? It seems, therefore, that employees with knowledge of proprietary company information stand a better chance of success. The DOS cites the former INS standard that if ?it would be difficult to impart to another without significant economic inconvenience,? this may be dispositive to the outcome of determining specialized knowledge.?

?Key Personnel?

For larger companies with more than one employee holding a specified position, the issue of ?key? versus ?normal? personnel should be considered, according to the memorandum. ?In other words, consideration should be given to whether this employee is more experienced or otherwise has a deeper level of knowledge of a specific company function. This is not to say that only one employee of a particular job family can qualify.? Instead, he or she should be distinguishable from other ?ordinary? skilled workers within the company.?

?More than Ordinary?

The memorandum also instructs that the ?more than ordinary? standard should also be applied.? The dichotomy here is that the DOS also explains that the employee need not be extraordinary.? In trying to explain where this factor comes down, the memorandum notes that the employee?s work should involve knowledge of special company projects or greater than normal experience or knowledge.? There appears to be some overlap between the ?key personnel? and ?more than ordinary? standards.

Employer-Employee Relationships

Similar to USCIS?s position on this issue, in instances where an employee will be placed at the worksite of an unaffiliated company, DOS requires proof that the employee will be controlled and supervised by the sponsoring employer.? While the unaffiliated company may have input into what the employee does on a day-to-day basis, the main issue is the ultimate right of control ? this must reside in the sponsoring employer to maintain the requisite employer-employee relationship.


Graham Adair?will work?with?clients to anticipate the application of this stricter standard by supplying additional information about the nature of the transferring employee?s skills and experience. ?If a distinction about the employee?s specialized knowledge cannot be made, his or her visa application could be denied.

Categories News & Updates USCIS

H-1B Cap Update: Less Than 7,000 H-1Bs Left for FY2011

The U.S. Citizenship and Immigration Services (USCIS) has announced that as of December 31, 2010, it has accepted 57,300 cap-eligible H-1B petitions, leaving approximately 7,250 available.*? This benchmark came a week ago, so it is likely that there are now fewer than 7,000 H-1Bs left for FY2011.?

USCIS has also indicated acceptance of 20,000 petitions filed under the advanced U.S. degree set-aside.? This means that the advanced U.S. degree cap has been exhausted.

Graham Adair advises clients to file all necessary H-1B petitions as soon as possible to avoid missing the FY2011 cap.? On average, approximately 6,000 H-1B petitions have been accepted by USCIS every month, although the general rate seems to have increased over the recent months.? If the cap is missed for this year, clients will have to wait until April 1, 2011 to file new H-1B cases, which if accepted would become valid on October 1, 2011.

Please contact Graham Adair for assistance:


*Every year, up to 6,800 H-1B numbers are set aside for citizens of Chile and Singapore.? Any unused numbers are rolled over to the following year?s H-1B cap.? This means that in any given year, the regular H-1B cap consists of 58,200, plus any carry over from the unused Chile/Singapore set-aside of H-1Bs from the previous year.?? There were 6,350 unused from FY2010, which have been rolled into the FY2011 cap.? This means that at total of 64,550 (58,200 + 6,350) H-1Bs were actually available in FY2011 for those not citizens of Chile or Singapore.

Categories News & Updates USCIS

USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices?have issued updated processing times.? Generally, processing times have remained consistent this month from last month,?with some improvement in H-1B processing times at the California Service Center.? The processing of H-1B extensions at the Vermont Service Center continues to be extremly slow, with processing times at about five and a half months.? This estimated five and a half month processing time can have a significant impact on foreign national employees.? This is why it is imperative that employers file H-1B extensions as close to the six-months-from-current-expiration-date mark as possible.? Otherwise, employees could encounter travel restrictions and have problems renewing driving privileges.? The California Service Center processing of H-1B extensions is still around 2 months.?


California Service Center

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.? CSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

The processing time for most I-129s, including TNs and E-1/2s, is 2 months.? L-1s and H-2A/Bs are being processed within a 1-month timeframe, while O-1s are moving at a blistering 2-week pace.?

H-1Bs are being processed in around two months, which is an improvement over last months report.?

Applications for employment authorization for L-2 dependent spouses have a processing time of 3 months.?

Vermont Service Center

Under the bi-specialization initiative, the Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant, employment-based cases.? VSC processes cases filed for individuals whose worksites are in one of the following states: AL,?AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI,?and WV.

For employment-based cases, VSC’s processing times mostly mirror CSC’s processing times.? The exceptions, again, are H-1B cases.? New H-1Bs (visa to be issued abroad) and H-1B change of status cases have improved and are now being processed in about 2 months.????H-1B extensions are?still?being processed at around five and a half months; we anticipate that this processing time will improve over the next couple of months.? ?

Nebraska Service Center

For employment-based immigration cases, the Nebraska Service Center (NSC) processes I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).? NSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

All I-140 petitions continue to have a processing time of 4 months.? This includes petitions sponsoring Outstanding Researchers or Professors, those with Extraordinary Ability, and Multinational Managers.?

I-485 applications for adjustment of status?continue to be processed in about four months time.??

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remain at a troubling 3 months.? The concern here is for those who filed I-485 applications in the summer of 2007 when all priority dates became current, and whose priority dates then retrogressed.? Applications to extend EAD and AP can only be filed 4 months in advance.? With a processing time of 3 months, any delay in filing could result in a gap of work and travel authorization.

Texas Service Center

Under the bi-specialization initiative, the Texas Service Center (TSC) is the other regional processing center that focuses on I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).? TSC processes cases filed for individuals whose worksites/residences are in one of the following states: AL,?AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI,?and WV.

The processing times at TSC are the same as those listed above for NSC.? With the exception that employment based I-485 applications are taking right around 6 months, with a specific processing date of June 5, 2010 being given, which is an indication that the USCIS is working to bring this processing time down to its stated goal of four months. ??

To view the processing time of other case types not discussed here, please visit:


* Please note that the processing time for an I-485 only applies to applicants whose priority dates are current.?

Categories Department of State Global News & Updates

U.S. Ambassador to India Announces Simpler U.S. Visa Application Process

The U.S. Embassy in New Delhi and the Consulates General in Mumbai, Chennai, Kolkata, and Hyderabad will now accept visa applications from individuals whose home residence is in any other Indian jurisdiction.? This is being done in an ongoing effort by Mission India to facilitate legitimate travel to the United States.?

After the Consulate General in Hyderabad opened in 2008, the U.S. Mission has looked for ways to best capture the unique nature of India?s growth across the country. ?This resulted in a re-designation of consular districts. ?Effective immediately, the consular districts in India will be organized as follows:?

U.S. Embassy in Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan;?

U.S. Consulate in Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli;?

U.S. Consulate in Hyderabad: Andhra Pradesh, Orissa; Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands;?

U.S. Consulate in Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, and West Bengal.?

These changes will create a much more convenient and supportive process for U.S. visa applicants in India.